The extent of temporary protection of the citizens of Ukraine clarified in Czechia
The Supreme Administrative Court of the Czech Republic (SAC) has recently issued two judgments, clarifying the extent to which the Ukrainian citizens granted temporary protection by one EU Member State may freely move to another one and ask for temporary protection there.
The EU legislation
Relevant legislation is based on the Temporary Protection Directive (TPD),[i] the purpose of which is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons from third countries (TPD, Art. 1). The existence of such a mass influx of displaced persons shall be established by a Council Decision adopted by a qualified majority on a proposal from the Commission (TPD, Art. 5 (1)). Such a decision has a direct effect of introducing temporary protection for the displaced persons to which it refers in all the Member States (TPD, Art. 5 (3)). As a consequence, Member States are obliged to adopt all the necessary measures to provide persons enjoying temporary protection with residence permits for the entire duration of the protection (TPD, Art. 8 (1)).
The TPD itself does not allow the displaced persons to choose themselves the EU Member State they want to reside in. In general, they are to be distributed according to Member States’ capacity to receive them (TPD, Art. 25). After having been granted the temporary protection in a certain Member State, they cannot move to another one. According to Art. 11 TPD, a Member State shall take back a person enjoying temporary protection on its territory, if the said person remains on, or seeks to enter without authorisation onto, the territory of another Member State. There are specific rules for transfer among Member States (Art. 26 TPD), including for the purposes of family reunification (TPD, Art. 15).
The regime of the Ukrainians is governed by the Council Implementing Decision (CID)[ii] of 2022, which alters this regime and enables the displaced persons to choose a Member State to reside in: Ukrainian nationals, as visa-free travellers, have the right to move freely within the Union after being admitted into the territory for a 90-day period. On this basis, they are able to choose the Member State in which they want to enjoy the rights attached to temporary protection and to join their family and friends (CID, rec. [16]). At the same time, there is no agreement on the distribution of the displaced Ukrainians between the Member States, as foreseen by Art. 25 TPD; conversely, the Member States agreed not to apply Art. 11 TPD, i.e. the obligation of the state granting temporal protection to re-admit persons that had moved to another state (CID, rec. [16]).
These rules are however not clear on the question, whether Ukrainians may subsequently, after having chosen the “first” state to reside in, chose another one, and whether that state has an obligation to admit them. This issue was addressed by the SAC’s judgment.
The Czech legislation
In the Czech Republic, the TPD was transposed by the Act on the Temporary Protection of Foreign Nationals (ATPFN).[iii] Specific implementation of the TPD with regard to the CID is contained in the Lex Ukraine.[iv] Granting of the temporal protection shall generally be governed by the ATPFN (Lex Ukraine, Sec. 4), the application for temporal protection shall nonetheless be inadmissible if it is submitted by a foreign national who has applied for temporary protection in another EU Member State or who has already been granted temporary protection in another state (Lex Ukraine, Sec. 5 (1)(b)). The decision on inadmissibility is to be taken by the Ministry of Interior; judicial review of such a decision is excluded (Lex Ukraine, Sec. 5 (2)).
The first case
In the first case, a Ukrainian national submitted an application for temporary protection in Germany, and two months later, before the German authorities had decided, in the Czech Republic. The Czech Ministry of Interior rejected the application as inadmissible. The applicant appealed this decision (despite the fact that such decisions are excluded from judicial review, see above) to the Municipal Court in Prague, that upheld the claim and annulled the Ministry’s decision.[v] The Ministry appealed to the SAC, that referred two questions to the Court of Justice of the European Union:[vi]
1) Does Article 8 (1) TPD preclude national legislation under which an application for a residence permit for the purpose of giving temporary protection is inadmissible if the foreign national has applied for a residence permit in another Member State or has already been granted a residence permit in another Member State?
2) Does a person enjoying temporary protection under TPD have the right to an effective remedy before a tribunal against the failure of a Member State to grant a residence permit within the meaning of Article 8 (1) TPD?
The CJEU replied on 27 February 2025 in the Krasiliva judgment.[vii] According to the court, the displaced Ukrainian nationals have the right to apply to the authorities of the Member State of their choice for a residence permit (Krasiliva, para 28). Accordingly, where a person enjoying temporary protection has, in one Member State, applied for a residence permit, on the basis of Article 8(1) TPD, but has not yet obtained it, and subsequently travels to a second Member State and submits a similar application there, the second Member State cannot reject that second application as inadmissible on the sole ground that an application has already been submitted in the first Member State. It is therefore for that second Member State to examine the merits of the application submitted to it (Krasiliva, para 29).
Concerning the second question, the CJEU concluded that Article 47 of the Charter of the Fundamental Rights of the European Union, requires that a decision to reject as inadmissible an application for a residence permit, under Article 8 (1) TPD, made by a person enjoying temporary protection within the meaning of that directive may be the subject of an effective remedy before a tribunal (Krasiliva, para 37).
After this clear judgment, the Ministry of Interior withdrew its appeal and the SAC stopped the proceedings.[viii]
The second case
The CJEU however did not address another issue, contained in the SAC’s reference, the question whether the same conclusions apply in situation where a person has already obtained the temporary protection in one Member State, but consequently applies for it in another one. The SAC had to tackle it in a subsequent case. It concerned a Ukrainian national who obtained temporary protection in Belgium, but subsequently decided to move to the Czech Republic and applied for a residency permit there. As in the first case, the application was rejected by the Ministry of Interior as inadmissible. When appealed, this decision was annulled by the Municipal Court in Prague.[ix] The ministry appealed to the SAC, that ultimately upheld the judgment of the Municipal Court.[x]
The SAC first observed that in line with the Krasiliva judgment, the claim is admissible, even though in its previous judgments it agreed that judicial review may be excluded.[xi]
Concerning the merits of the proceedings, the SAC noted that even though the CJEU avoided to answer this question in the Krasiliva judgment, the SAC may decide it on itself. It argued in principle that when the Ukrainian nationals may freely choose the “primary” state of their residence, but later, they cannot by returned to that state if they decide to move to another one, because the Member States excluded the application of Art. 11 TPD, they have a de facto right to choose a “secondary” state of residence. According to the SAC, the only logical conclusion therefore is that they must be allowed to make this choice legal; they therefore have a de iure right to move.
The SAC subsequently outlined an algorithm according to which the Ministry of Interior is to assess such “secondary” requests:
(1) If a person has applied for temporary protection in a Member State, that has not decided on it yet, and subsequently in the Czech Republic, the application has to be reviewed; if all the requirements are met, the temporary protection shall be granted.
(2) If a person has already been granted temporary protection in another Member State, but it no longer has it (e.g. the “original” request was withdrawn), the “secondary” application in the Czech Republic has to be reviewed; if all the requirements are met, the temporary protection shall be granted.
(3) If a person has already been granted temporary protection in another Member State, but files a “secondary” application in the Czech Republic while the “primary” one is still in force, the application cannot be dismissed. At the same time, the applicant cannot have the same temporary protection status in two states. The ministry of Interior therefore has to check whether by granting “secondary” temporary protection in the Czech Republic, the “original” one will seize to exist; if yes, it may proceed as outlined above. If not, it must grant the applicant sufficient time to withdraw the “original” application and proceed thereafter.
Conclusions
This is an important judgment clarifying the ICD, with possible consequences for all the Member States. It is in line with the CJEU case-law, even though this specific question was not yet addressed by the court.
[i] Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
[ii] Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC and having the effect of introducing temporary protection.
[iii] Act No. 221/2003 Coll., on the temporary protection of foreign nationals, as amended.
[iv] Act No. 65/2002 Coll., on certain measures in connection with the armed conflict on the territory of Ukraine caused by the invasion of troops of the Russian Federation, as amended.
[v] Municipal Court in Prague, Ref. No. 11 A 80/2022-79, 27 April 2023.
[vi] Supreme Administrative Court, Ref. No. 8 Azs 93/2023-37, 30 November 2023.
[vii] Court of Justice of the European Union, C-753/23, 27 February 2025.
[viii] Supreme Administrative Court, Ref. No. 8 Azs 93/2023-101, 5 March 2025.
[ix] Municipal Court in Prague, Ref. No. 9 A 47/2024-25, 13 August 2024.
[x] Supreme Administrative Court, Ref. No. 1 Azs 174/2024-51, 3 April 2025.
[xi] E.g. Supreme Administrative Court, Ref. No. 2 Azs 178/2002-46, 12 October 2022.
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